Aborted Tennessee Execution Highlights Lethal Injection’s Crippling Problems Part One in a Series

Posted in: Constitutional Law

On Thursday, April 21, Oscar Franklin Smith was preparing to be executed by the state of Tennessee. Smith, who now is 72 years old, had been sentenced to death more than thirty years ago after a conviction on three counts of first-degree murder.

In the run up to his date with death, he called his brother to say his goodbyes. He asked his brother and other family members not to be present when he was put to death. As has long been the custom in death cases, Smith selected his last meal, a double bacon cheeseburger, a deep-dish apple pie, and vanilla bean ice cream. He then slept most of the day before his spiritual advisor arrived to visit him at 3 p.m.

One hour before his scheduled 7 p.m. execution, while taking communion with his spiritual advisor, he learned that the state had called off his execution.

Tennessee officials have not been forthcoming about the precise reasons that they stopped the execution. Bill Lee, the state’s governor, initially said only that they did so after a “technical oversight” during the preparations for the lethal injection. He revealed more on Monday.

What he revealed suggests that Smith’s case bore the hallmarks of problems that have plagued and continue to plague executions by lethal injection in the United States. They include shortages of needed drugs, frequent changes in drug protocols, reliance on unregulated compounding pharmacies, and state efforts to keep their procedures secret.

In our forthcoming book, Lethal Injection and the False Promise of Humane Execution, my collaborators and I show that lethal injection, once touted as America’s most humane method of execution, today is its most unreliable. This is as true in Tennessee as it is across the country.

Instead of scrambling to quickly regroup and put Smith to death, the state should stop all executions. It should commission an independent investigation of the problems in the Smith case and make the results of that investigation public.

Pending such an investigation, let us consider what we know now about the situation in Tennessee, including the prehistory of Smith’s last-minute reprieve.

Like many death penalty states, Tennessee has had difficulties during the last decade securing the drugs for the standard three-drug cocktail used in every lethal injection in this country from 1977 to 2009.

In 2013, Tennessee announced plans to abandon that long-standing combination of drugs and rely on a lethal dose of a single drug, pentobarbital. It did so despite the fact that the drug’s Danish manufacturer and its American subsidiary refused to allow its distribution “if it is to be used for executions.”

But as it turned out, Tennessee never used this one-drug protocol.

It next put someone to death in August 2018, in what proved to be the botched execution of Billy Ray Irick. By then, Tennessee had authorized death row inmates to choose death by electrocution as an alternative to lethal injection and changed yet again its lethal injection protocol.

For those who continued to prefer to die by lethal injection, Tennessee switched to a new three-drug protocol featuring the sedative midazolam as the first administered drug. It did so despite the fact that midazolam already had proven to be troublingly unreliable when used in lethal injections.

As a report about Irick’s execution noted, midazolam is “supposed to render inmates unconscious and unable to feel pain, but does not stop them from feeling the effects of the other two drugs, vecuronium bromide and potassium chloride.”

Ignoring these well-documented problems, Tennessee planned to use midazolam in Smith’s execution.

But the difficulty that apparently stopped it from proceeding had nothing to do with midazolam. Instead it likely resulted from the state’s difficulty in sourcing vecuronium. That drug is meant to paralyze the inmate and stop them from breathing.

In its determination to keep putting people to death, when it ran into problems getting that drug, the state turned to compounding pharmacies to supply it.

The state’s 2019 lethal injection protocol lays out the process for using compounding pharmacies in unusual but revealing detail. “Upon receipt of an order setting an execution date,” the protocol says, “the Commissioner or his designee shall contact a physician to obtain a physician’s order for the LIC (lethal injection chemicals). The Commissioner or his designee shall submit the physician’s order to a licensed pharmacy or pharmacist to be filled.”

It further states that “The Pharmacist shall compound all drugs in a clean sterile environment in compliance with pharmaceutical standards for identity, strength, quality, and purity of the compounded drug that are consistent with United States Pharmacopoeia guidelines…. Compounded preparations shall be transferred, stored and maintained in accordance with the directions of the Pharmacy with which the Department has a Pharmacy Services Agreement.”

The kind of compounding pharmacies that Tennessee uses are specialized drug manufacturers which have existed in the United States since the 1880s. In the 20th century, they took on the role of producing medications for patients, institutions, and most recently, death penalty states on a case-by-case basis.

However, unlike larger pharmaceutical companies, compounding pharmacies are not subject to extensive regulation by the Food and Drug Administration. Though their pharmacists are required to be licensed, licensure requirements vary from state to state, and the laws governing compounding facilities are often lax.

The lack of meaningful oversight of drug compounding facilities has had predictable and sometimes tragic results, including distribution of contaminated drugs, patient deaths, and even jail sentences for some compounding pharmacy employees. Despite these problems, states like Tennessee, continue to rely on them to supply drugs for their lethal injections. And they do so without making known the actual supply chain.

The kind of “technical oversight” that Gov. Lee referenced occurs when state officials identify contamination in the compounded execution drugs or when the “use by date” has passed.

And beyond these problems, Tennessee, following another recent national trend, has imposed a veil of secrecy over its execution procedures. It forbids public disclosure of the identities of any “person or entity involved in the procurement or provision of chemicals, equipment, supplies and other items for use in carrying out a sentence of death.”

That secrecy frustrates the public’s right to know what the government does when it puts people to death. It prevents inmates from getting access to information they need to protect their constitutional rights. And secrecy invites irresponsible behavior in the execution chamber.

It also so far has prevented the full disclosure of the “oversight” that stopped Smith’s execution.

Gov. Lee has rightly put a pause on lethal injection in his state, but what is important now is that the state offer a complete and transparent account of what the problems in Smith’s execution were.

If it does so, it will doubtless add more to the mounting evidence that lethal injection is, as Supreme Court Justice Sonia Sotomayor once noted, far from being the “most humane” method of execution, “our most cruel experiment yet.”

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